2025 PCrLJ 1473

Hammad Qayyum Versus State

Citation2025 PCrLJ 1473

CourtHigh Court of Azad Jammu and Kashmir

Judge(s)Sardar Muhammad Ejaz Khan and Chaudhary Khalid Rasheed

Chaudhary Khalid Rasheed, J .--- The captioned appeal has been preferred against the judgment dated 13.09.2022 passed by learned Additional Sessions Judge Kotli whereby, appellant has been convicted under section 377-A(i)-APC by awarded life imprisonment along with fine of Rs.20,00,000/-.

Facts of the case which culminated into the captioned appeal briefly stated are, Aizaz Yousuf son of Muhammad Yousuf complainant filed a written application Exh.PA at Police Station Charhoi on 22.05.2021 alleged therein that he is a resident of Keeri, on 22.05.2021 his son Hamza aged 8 years at 5:15 pm went to graze goats in the jungle at some distance from home. At 6:15 pm, his son came back while weeping, when asked, he told that accused Hammad forcibly committed unnatural offence with him. The condition of victim was not good and his trouser was blood stained.

On this report FIR. No.74/2021 Exh.PB was registered at Police Station Charhoi in offence under section 377-A(i)-APC on 22.05.2021. After formal investigation, police submitted challan before the Court of competent jurisdiction. The charge was framed under section 265/D Cr.P.C. qua accused claimed innocence whereupon, prosecution was directed to lead evidence in order to prove the guilt of the accused. Upon completion of prosecution evidence, statement of accused recorded under section 342 Cr.P.C. on 07.09.2022. The accused again pleaded innocence but opted neither to produce evidence in defence nor to record his statement under section 340(2) Cr.P.C. At the conclusion of trial, the learned Court below after hearing pro and contra convicted accused by sentenced him as mentioned in the preceding paragraph, hence the captioned appeal.

STANCE OF THE APPELLANT:

The learned counsel for the convict/appellant while referring to the statements of prosecution witnesses vehemently contended that the prosecution witnesses are not unanimous on the time of occurrence. He contended that victim stated in his court statement that after giving report of the occurrence to the police he straight away went home, eat meal and go to bed, thus he denied his medical checkup. The learned advocate further submitted that the victim further deposed that accused did not put off his clothes, hence the ingredients of sodomy are not established, whereas the recovery of blood stained trousers of the victim is shrouded in mystery and all the prosecution witnesses are close relative to the victim, hence their evidence cannot be relied upon for conviction. He finally pressed into service that prosecution has miserably failed to prove its case beyond shadow of reasonable doubt, therefore the accused was entitled to be acquitted of the charges. The learned advocate placed reliance on the following case laws:-

1. 1999 YLR 2305;

3. 1989 SCMR 418;

5. 1996 PCr.LJ 358;

9. PLJ 2011 FSC 115.

REFUTATION OF THE RESPONDENTS:

The learned counsel for the complainant supported the impugned judgment by submitted that prosecution has successfully proved the guilt of accused to the hilt by producing cogent, reliable and confidence inspiring evidence hence, Court below has rightly convicted in consonance with the spirit of relevant law. He further argued that for conviction of an accused in an offence under section 377(A-1)-APC, even a solitary statement of victim, if supported by medical evidence, is sufficient and in the instant case, victim fully endorsed the version taken in FIR, hence requested for the dismissal of appeal as carries no water to hold.

The learned AAG adopted the arguments advanced by the learned counsel for the complainant by solicited that prosecution version has been amply substantiated in a legal fashion, thus the conviction order recorded by the Court below entails to be sustained.

We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

COURT OBSERVATIONS AND RELEVANT LAW:

A perusal of record reveals that complainant submitted his report on 22.05.2021 at Police Station Charhoi that accused Hammad Qayyum has committed sodomy with his son Hamza aged 8 years on 22.05.2021 when he went to graze his goats in a nearby jungle. Prosecution in order to prove its stance got recorded the statement of victim Hamza. Hamza deposed in his court statement that on the day of occurrence he went to graze goats, accused committed sodomy with him and when blood oozed, the accused warned not to share the occurrence at home otherwise he will face the severe consequence thereafter the accused person fled away. The victim at the time of recording his statement on 30.06.2022 was ten years of age but defence despite lengthy cross-examination failed to shake his credibility or to extricate anything divergent to the prosecution version, he also deposed during cross-examination that the clothes wearing at the time of occurrence were changed before going to bed and did not wear in the morning. The statement of victim appears to be true, natural and confidence inspiring. Medical evidence fully supported the statement of the victim and it is opined by the Doctor as under:

"Per anal bruise is seen with blood stained anus and shalwar of master Hamza (patient). A large hematoma is visible at 11'o'clock position. Three anal swabs are taken and sent to DHQ Hospital Kotli. On initial examination it can be said that sexual act has been taken place in the duration of 01 to 03 hrs time approximately."

The above-reproduced report of a doctor makes it blatantly obvious that victim met through the episode of sodomy. As per report, Exh.PE/2, the accused was a well built adult man, having well developed secondary sex characters and was found potent for sexual activity of any kind including sodomy. It is a trite law that an accused can be convicted under section 377-APC on solitary statement of victim if it rings true and is supported by medical report. Reliance in this regard may be placed on 2001 PCr.LJ 503, wherein it has been held has under:

"In cases of Zina and sodomy, there are generally hardly any witnesses other than the victim, as it is very rare that such offence takes place in view of others or at public place. That is why, the Superior Courts in this country have attached great sanctity to the statement of the victim and it has been repeated laid down that sole testimony of the victim would be sufficient to base conviction thereon if it inspires confidence."

The same view has been taken in 2012 PCr.LJ 1200, 1999 PCr.LJ 699 and 2004 PCr.LJ 1039.

In the instant case, complainant, who is father of victim, also got his statement recorded and corroborated the version narrated in FIR. Aizaz Yousuf, Muhammad Asif, Muhammad Taimoor, Habib-ur-Rehman, Tariq Mehmood, Muhammad Yousuf, Aftab Hussain, Waheed Iqbal, Abid Hussain, Syed Abbas Ali Shah, Sadaqat Hussain and Chaudhary Shahzad Masood also appeared in the witness box and endorsed the prosecution version sine any blemish. Dr. Imran Asif and Dr. Ahmed Zaka Subhani also got recorded their Court statements and sanctioned the contents of the medical reports prepared by them, hence the statements of doctors who examined the victim also corroborated and reinforced the prosecution version. Defence miserably failed to impeach their trustworthiness or untangle anything injurious to the stance of the prosecution.

Vide Exh.PA/1, blood stained trouser of victim was recovered on 23.05.2021 in presence of Haji Muhammad Yousuf and Waheed Iqbal. Both the recovery witnesses recorded their statements and supported the recovery memo through an un-impeached testimony. As per Exh.PO, trousers of victim was reported to be stained with human blood by chemical examiner, hence prosecution story is further strengthened by recovery memos. We are of the view that prosecution has entirely substantiated the guilt of accused to the hilt sine any reasonable doubt, Court below has appreciated the prosecution evidence in its true spirit and perspective in consonance with the command of the relevant law. No perversity, anomaly, legal infirmity or any flaw in appreciation of evidence has been found in the ratio decidendi recorded by the Court below, hence the instant appeal entails to show the doors.

Under section 377-(A-1)-APC, whoever commits rape or unnatural offence with a minor shall be punished with death or imprisonment of life or castration along with imprisonment which may extend to ten years and fine. For commission of offence under section 377 or 377-(A-1)-APC the followings are essential ingredients: i. that the accused had carnal intercourse against the order of nature; ii. that such an intercourse was with any man, woman or animal; and iii. that accused did so voluntarily.

The offence of sodomy under section 377/337-A1-APC is complete when there is an act of carnal intercourse against the order of nature with any man, woman or animal, hence simple penetration is sufficient to constitute said offence and the ejaculation is not necessary. Reliance may be placed on 2007 SCMR 698 and PLJ 2003 Cr.C. Lahore 852, so the argument advanced by the learned counsel for the appellant that no semen was found on the body of the victim, hence the offence of sodomy has not been attracted has no plausible substance, thus repelled.

It is also an admitted position that the accused at the time of commission of offence was below the age of 18 years, hence the award of lesser punishment by the Court below on the ground that the accused is of young age and being first offender is justified. In this regard reliance may be placed on 1986 SCMR 533, wherein at page 536, it has been observed as under:

"Taking the same factors in view i.e. the young age of the convict and his being the first offender, the sentence was reduced for the offence under section 377, P.P.C., to five years' R.I. and the fine of Rs.2,000/- or in default one year R.I."

The next argument advanced by the learned counsel for the convict-appellant that all the prosecution witnesses are close relatives to the complainant, hence their testimony cannot be believed has also got no force of law because it is an axiomatic precept of law that a related witness is as much competent witness as any other and can only be disbelieved if got a substantial motive to implicate the accused in a false case. Particularly in cases of Zina and sodomy in which the family honour is involved element of false implication is a rare phenomena. Reliance may be placed on 2023 SCR 1172 and 2012 PCr.LJ 1200. The defence failed to establish or allege any animosity of the prosecution witnesses towards accused or they have any motive to falsely implicate the accused in a such like criminal case, thus, the argument advanced by the learned counsel for the convict-appellant has got no essence, hence repelled.

We also failed to observe any major contradiction regarding the commission of offence of the sodomy by the convict with the victim on the day of occurrence, whereas the minor discrepancies illuminated out by the learned counsel for the appellant regarding time of telling story by the victim to his father, the time of coming back to home or time of last seen evidence are ignorable because the same do not go to the roots of the case rather are natural.

The case law relied upon by the learned counsel for the convict-appellant is of divergent facts hence, not applicable in the instant case. In criminal cases, each case has got its own peculiar facts, hence the case law of one criminal case hardly applies to the other.

DISPOSAL:

The crux and epitome of the above discussion is, finding no essence the instant appeal is hereby dropped.

JK/27/AJK H.C Appeal dropped.